Excerpt: code of civil procedure - order xiv rule-1, order xii rale, 234--in spite of detailed pleadings by the parties no specific issue was framed to the effect whether the prdnote was executed under duress and threat of criminal prosecution but it was to the effect if the pronote was without consideration. but the parties led exhaustive evidence on this aspect also; and the same was considered by the trial court. under such circumstances there was no need for the appellate court to frame additional issues, nor was there any need to remand the case bads to the trial court for returning findings and the issues as newly framed by the first appellate court. - .....the facts as pleaded were that banwari lal who was the plaintiff's sister's husband and one phool chand were carrying on the business of jewellers in chandni chowk had entered into a bargain with ram sarup defendant no. 1 and bane khan for purchase of some gold of the value of rs. 9000.00 on 30th december, 1960. ram sarup defendant no. 1 and bane khan sold gold of the value of rs. 9000.00 to banwari lal and phool chand and got rs. 9003.00 from them, after giving the gold. banwari lal and phool chand came in car no.dlf-1350 which was driven by the employee of defendant no. 2 and this car belonged to defendant no. 2. when bane khan and defendant no. i had given gold to banwari lal and phool chand the police arrived at the spot and took the car to rajinder nagar, police station......

Judgment:

N.N. Goswamy, J.

(1) This second appeal by the defendant is directed against the order dated 16-12-1972 passed by the Additional District Judge, Delhi whereby ie framed two additional issues and remanded the suit for fresh trial.

(2) The respondent-plaintiff had instituted a suit for recovery of Rs. 4700.00 on the basis of the pronote dated 1-1-1961 for Rs. 4000.00 and had claimed Rs. 700.00 as interest. The suit was resisted by the appellants. It was pleaded that the pronote was without consideration and the same was got executed under duress and threat of criminal prosecution. The facts as pleaded were that Banwari Lal who was the plaintiff's sister's husband and one Phool Chand were carrying on the business of jewellers in Chandni Chowk had entered into a bargain with Ram Sarup defendant No. 1 and Bane Khan for purchase of some gold of the value of Rs. 9000.00 on 30th December, 1960. Ram Sarup defendant No. 1 and Bane Khan sold gold of the value of Rs. 9000.00 to Banwari Lal and Phool Chand and got Rs. 9003.00 from them, after giving the gold. Banwari Lal and Phool Chand came in car No.DLF-1350 which was driven by the employee of defendant No. 2 and this car belonged to defendant No. 2. When Bane Khan and defendant No. I had given gold to Banwari Lal and Phool Chand the police arrived at the spot and took the car to Rajinder Nagar, Police Station. Banwari Lal and Phool Chand lodged a report with the help of the plaintiff and stated therein that the gold, given to them was not according their desire. The police also called defendant No. 2 at the police station. There the defendants were made to sit in the police station throughout the day and under coercion and on threat of third degree method defendant No. 1 paid Rs. 5000.00 to Banwari Lal and Phool Chand in the police station. For the remaining amount a pronote for Rs. 4000.00 was executed in favor of the plaintiff, Thereafter a compromise deed is said to have been executed in the police station which was signed by the plaintiffs Banwari Lal and Phool Chand and defendant No. 1. In that compromise deed, Banwari Lal and Phool Chand admitted having received their money and the return of the pronote to defendant No. I and Bane Khan. It is alleged that this was so recorded on 1-1-1961 at night time. It was further pleaded that even the remaining amount of Rs. 4000.00 out of Rs. 9000.00 was arranged by the relations of defendant No. I and was paid to Banwari Lal and Phool Chand. The gold was returned to defendant No. I after payment of the amount. However, the pronote of Rs.4000.00 was not returned though it was demanded.

(3) On the pleadings of the parties, the learned trial Judge framed the following issues:

1. Whether the pronote is without consideration 2. Relief.

(4) After recording the entire evidence, the learned trial Judge came to the conclusion that the pronote had been executed under threat and coercion and in order to avoid the criminal prosecution. It is further recorded that the pronote in question Was got executed from the defendants under coercion by the police and in order to get rid of a complaint under Section 420, Indian Penal Code compromised and nothing was paid by the plaintiff Chhannu Mal to the defendants or defendant No. 1 for executing this pronote. This finding was recorded after considering the pleadings and the entire evidence including the statement of Chhannu Mal and his other witnesses. I have been taken through the pleadings as also the evidence and I am of the opinion that the exact case which was to be met by the parties, was regarding the pronote having been obtained by coercion and under threat of prosecution. The parties have led their evidence to that effect which has duly been considered by the learned trial Judge.

(5) On consideration of the entire evidence, the learned trial Judge found issue No. 1 in favor of the defendants and came to the conclusion that the pronote was executed without consideration. Consequently the suit was dismissed.

(6) In appeal learned Addl. District Judge came to the conclusion that the learned trial Judge had not framed specific issues which could be found from the pleadings of the parties. Accordingly he framed two additional issues. The said issues are, as under :

1. Whether the pronote in suit was got executed from defendants by duress and threat of criminal prosecution 2. Whether the pronote in suit stood discharged by the payment of Rs. 4000.00 , as alleged, by the defendants ?

(7) The suit was remanded to the trial court under Order 41 Rule 23-A of the Code of Civil Procedure for redecision after allowing the parties to lead evidence on the issues framed.

(8) The contention of the learned counsel, for the appellant, in this seconds appeal is that as regards the first issue framed by the learned Addl. District Judge the same already stands decided .by the learned trial Judge under issue No. 1 which was comprehensive enough to include this plea. After giving my careful consideration, I entirely agree with the learned counsel, for the appellant, for the reasons which I have already discussed above. The parties knew the, case they were called upon to meet and in fact the entire evidence was pointedly led on issue No. 1 as framed by the learned Addl. District Judge. The learned trial Judge has given definite and firm findings on that issue in his judgment. thereforee, in my opinion, issue No. 1, as framed by the learned Addl. District Judge does not arise since the same stands decided by the learned trial Judge. As regards the second issue, the learned cotinsel, for the appellant contends that in fact no evidence to that effect was led by the defendants and he does, not .press the said .issue. Accordingly when the issue is not being pressed, the question of remand for decision of the said issue does not arise.

(9) For the reasons recorded above the appeal is allowed and the impugned order of remand dated 16-12-1972 is set aside. The learned Addl. District Judge has not recorded his findings on merits in the impugned judgment. Accordingly the appeal is sent back to the learned Addl. District Judge, Delhi for hearing the same on merits. In spite of my waiting for a pretty long time, there has been no appearance for the respondents and I did not have the advantage of hearing the learned counsel. In the circumstances, the parties are left to bear their own costs. The parties are directed to appear before the learned District Judge, Delhi on 21st January, 1985. The learned District Judge with, either take the appeal on his own file or assign it to any Addl. District Judge.